J-S21024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MATTHEW ALLEN LAPOINT 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1638 MDA 2022

Appeal from the Judgment of Sentence Entered November 1, 2022

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0000630-2022

BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED: OCTOBER 23, 2023

Appellant Matthew Allen Lapoint appeals from the judgment of sentence 

imposed following his conviction for possession of firearm prohibited.

1

Appellant challenges the trial court’s ruling on the admissibility of a 911 call. 

We affirm.

The trial court summarized the relevant facts and procedural history of 

this matter as follows:

On December 14, 2021, police were called to 38 Conestoga Manor,

Leola, PA 17540, following a domestic dispute between Appellant 

and his wife. The couple’s fifteen-year-old daughter, K.L., called 

911 because Appellant and his wife were engaged in a verbal and 

physical altercation, where Appellant’s wife allegedly struck him 

in the face. Shortly thereafter, Appellant’s wife exited the 

residence, and the couple’s eleven-year-old daughter, G.L., 

witnessed Appellant with a shotgun in his hand as he left the home 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6105(a)(1).
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through the front door. When police arrived, it was determined 

that Appellant had been convicted of a second-degree felony[FN1] 

in Florida, and as such, he was a person not to possess a firearm. 

After a search, police recovered two shotguns and one shotgun 

shell. Appellant was then arrested and subsequently charged with 

one count of possession of firearm prohibited.[FN2]

[FN1] [Appellant] was convicted of Aggravated Battery in 

Florida, [] FLA. STAT. §784[.]045 (1995), on May 11, 1995. 

[FN2] 18. Pa.C.S. § 6105(a)(1). Appellant was also charged 

with terroristic threats, 18 Pa.C.S. § 2706(a)(1) and 

endangering the welfare of children 18 Pa.C.S. §

4304(a)(1), however, [the] charges [of terroristic threats 

and endangering the welfare of children] were later 

withdrawn. 

Trial Ct. Op., 1/20/23, at 1-2 (some citations omitted and some formatting 

altered).

On August 23, 2022, a jury found Appellant guilty of possession of a 

firearm prohibited. On November 1, 2022, the trial court sentenced Appellant 

to a term of six to twelve months of incarceration. Appellant filed a timely 

appeal, and both the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant presents the following issue:

Did the trial court err in admitting K.L.’s 9-1-1 call to police where 

K.L.’s statements during the call were double hearsay, as she did 

not witness [Appellant] carrying a gun from the house but was 

only repeating what her sister, G.L., had told her?

Appellant’s Brief at 5.

Appellant argues that the trial court abused its discretion by admitting 

the 911 call because the call consisted of K.L.’s statements concerning not 

what she had observed, but rather what was relayed to her by her sister G.L. 
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Appellant contends that this 911 call constituted double hearsay and no 

exception applied. Appellant’s Brief at 13-15. Further, Appellant asserts that 

he preserved his objection to the admission of the 911 call by filing a motion 

in limine. See id. at 11-13.

The Commonwealth responds that Appellant waived this issue because 

in addressing Appellant’s pretrial motion in limine, the trial court did not rule 

on the admissibility of the 911 call, but rather informed the parties that he 

would defer his ruling and that the issue would be addressed at trial.

Commonwealth’s Brief at 7-9. The Commonwealth further posits that because 

the trial court deferred its ruling on defense counsel’s pretrial motion in limine

objecting to the admission of the 911 call, defense counsel was required to 

renew his objection when the Commonwealth sought to play the 911 call at 

trial, pursuant to Pa.R.E. 103. Id. at 8-9. The Commonwealth argues that 

because defense counsel failed to renew its objection at trial, the issue was 

not preserved for appeal and is waived. Id. 

Additionally, the Commonwealth contends that even if Appellant 

properly raised and preserved his objection, the trial court did not abuse its 

discretion in admitting the 911 call because the present-sense-impression 

exception to the hearsay rule applied in that G.L., who saw Appellant holding 

the firearm, also spoke to the 911 operator, along with her sister, K.L., who 

did not see the firearm. Therefore, G.L’s statements fall under the present 

impression exception in that her statements described or explained an event

or condition, made while or immediately after she perceived it, pursuant to 
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Pa.R.E. 803(1). See id. at 9-10. Alternatively, the Commonwealth asserts 

that even if the statements of K.L. in the 911 call did not satisfy the presentsense-impression exception to the hearsay rule, any error was harmless

because K.L.’s statements in the 911 call were cumulative and substantially 

similar to the properly admitted evidence at trial, including G.L.’s testimony

that she saw Appellant leaving the house carrying a firearm. See id. at 11-

12. 

We review a trial court’s evidentiary rulings using the abuse of discretion 

standard of review. Commonwealth v. Luster, 234 A.3d 836, 838 (Pa. 

Super. 2020). A finding of abuse of discretion “may not be made merely 

because an appellate court might have reached a different conclusion, but 

requires a result of manifest unreasonableness, or partiality, prejudice, bias, 

or ill-will, or such lack of support so as to be clearly erroneous.”

Commonwealth v. Saez, 225 A.3d 169, 178 (Pa. Super. 2019) (citation 

omitted).

As noted, Appellant’s issue concerns hearsay. Our Supreme Court has 

explained: “Hearsay is a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth 

of the matter asserted.” Commonwealth v. McCrae, 832 A.2d 1026, 1034 

(Pa. 2003) (citing Pa.R.E. 801(c)). “Hearsay evidence is not admissible except 

as provided by the Pennsylvania Rules of Evidence, [the Pennsylvania 

Supreme Court], or by statute.” McCrae, 832 A.2d at 1034 (citing Pa.R.E. 

802). 
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Moreover, an out-of-court statement containing another out-of-court 

statement is double hearsay or hearsay within hearsay. Commonwealth v. 

Laich, 777 A.2d 1057, 1060 (Pa. 2001); Commonwealth v. Chmiel, 738 

A.2d 406, 417 (Pa. 1999). “In order for double hearsay to be admissible, the 

reliability and trustworthiness of each declarant must be independently 

established. This requirement is satisfied when each statement comes within 

an exception to the hearsay rule.” Laich, 777 A.2d at 1060 (citation omitted); 

see also Pa.R.E. 805 (stating “[h]earsay within hearsay is not excluded by 

the rule against hearsay if each part of the combined statements conforms 

with an exception to the rule.”).

The present-sense-impression exception to the rule against hearsay

provides as follows:

The following are not excluded by the rule against hearsay, 

regardless of whether the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or 

explaining an event or condition, made while or immediately 

after the declarant perceived it. When the declarant is 

unidentified, the proponent shall show by independent 

corroborating evidence that the declarant actually perceived 

the event or condition.

Pa.R.E. 803(1). “For this exception to apply, declarant need not be excited or 

otherwise emotionally affected by the event or condition perceived. The 

trustworthiness of the statement arises from its timing. The requirement of 

contemporaneousness, or near contemporaneousness, reduces the chance of 

premeditated prevarication or loss of memory.” Id., cmt.
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However, we must first determine whether Appellant’s issue was

properly preserved for appellate review. The Pennsylvania Rules of Evidence 

provide, in relevant part, as follows:

(a) Preserving a Claim of Error. A party may claim error in a 

ruling to admit or exclude evidence only:

(1) if the ruling admits evidence, a party, on the record:

(A) makes a timely objection, motion to strike, or motion in 

limine; and

(B) states the specific ground, unless it was apparent from 

the context; or

(2) if the ruling excludes evidence, a party informs the court of 

its substance by an offer of proof, unless the substance was 

apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof.

Once the court rules definitively on the record—either before or 

at trial—a party need not renew an objection or offer of proof to 

preserve a claim of error for appeal.

Pa.R.E. 103(a)-(b) (formatting altered and emphasis added). The failure to 

offer a timely and specific objection results in waiver of the claim. 

Commonwealth v. Bruce, 916 A.2d 657, 671 (Pa. Super. 2007). “The rule 

is well settled that a party complaining, on appeal, of the admission of 

evidence in the [c]ourt below will be confined to the specific objection there 

made.” Commonwealth v. Cousar, 928 A.2d 1025, 1041 (Pa. 2007) 

(citation omitted). “Issues not raised in the trial court are waived and cannot 

be raised for the first time on appeal.” Pa.R.A.P. 302(a).

The notes of testimony from the hearing on Appellant’s motion in limine

concerning the admissibility of the 911 call reflect, in relevant part, as follows:
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[Counsel for Appellant]: The admissibility of the 911 phone --

phone call, if it is going to be attempted to be brought in to 

corroborate the child’s statements. I listened to it. It was about 

six minutes and 45 seconds. The child indicated that she didn’t 

see anything. She told the police that. But she was talking to the 

-- the operator, and she relayed that she saw her -- her dad with 

the shotgun but it was coming from the younger child. So it’s 

hearsay. So that -- I think the 6th Amendment, the right of 

confrontation of that child would be applicable.

THE COURT: So the -- the child is saying what another child saw?

[Counsel for Appellant]: That’s correct. 

THE COURT: What another child told that child what they saw?

[Counsel for Appellant]: That’s correct. That’s what I -- I listened 

to the tape, the 911 call, about three or four times. And that’s 

exactly -- and the officer confirmed that by pulling the children 

apart and did talk to them individually. And K.L. is the child that 

made the phone call. She’s the oldest one. And G.L., who is 11 

years old -- K.L. is 15. G.L. is the one who said that she saw my 

client with the shotgun, but she didn’t make the phone call. She 

wanted K.L., her sister, older sister, to make the phone call. But 

during the investigation the police found out that K.L. did not see 

anything, and it’s in the discovery material.

THE COURT: Okay. But the other child apparently saw something 

and confirmed that with the police afterwards, correct?

[The Commonwealth]: Correct.

[Counsel for Appellant]: That is correct. 

THE COURT: Okay. What’s your position?

[The Commonwealth]: Your Honor, it’s the Commonwealth’s 

position -- that is partly accurate, the younger child is telling the 

older child. However, you can actually hear at points the younger 

child saying things. It’s also a present sense impression. The kids 

are in the home and you can hear them say, we locked the door, 

we locked him out. And then you can hear [Appellant] banging 

on the door saying, let me in the fucking house. It’s all a present 

sense impression. It’s literally as it’s unfolding.
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[Counsel for Appellant]: And while he was banging on the door 

attempting to get in, the police were there. They had their guns 

drawn.

[The Commonwealth]: That doesn’t make it not a present sense 

impression.

[Counsel for Appellant]: And he -- he -- he had a cell phone in his 

hand, not a gun and complied with the officers with their 

commands for the arrest. But as far as the statement on the 911 

call, that was from an individual that did not see my client with 

the gun, and she confirmed that with the officer with the interview. 

There --

THE COURT: All at the time -- all at the time that this is occurring 

though, correct? This isn’t afterwards, this is all at the time that 

this is occurring?

[The Commonwealth]: Correct. It’s ongoing. 

THE COURT: At the same time, this child can hear the other child, 

her sister, saying this is what she’s seeing?

[Counsel for Appellant]: Yep, this is what she has seen. Yes. But 

it’s not the other child that’s –

THE COURT: I got it.

[Counsel for Appellant]: She does -- you can hear her in the 

background, but it’s very, very brief.

[The Commonwealth]: You can actually hear her having an 

emotional response to being afraid of [Appellant] taking the gun 

out of the home. 

THE COURT: Well, at this point we’ll permit it. But we’ll deal with 

this again when we get to the point that they’re gonna play it.

[Counsel for Appellant]: Very good. And maybe if we can just 

even listen to it prior to the ruling. It’s only six minutes and 45 

seconds.

THE COURT: That’s fine.

[Counsel for Appellant]: Thank you. 

THE COURT: Anything else? Nothing else?

[The Commonwealth]: No, Your Honor. 
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[Counsel for Appellant]: No, Your Honor

N.T., 8/22/22, at 7-11 (some formatting altered).

Further, at trial, after the Commonwealth authenticated the recording 

of the 911 call, which was marked and admitted as Commonwealth’s Exhibit 

#3, the Commonwealth requested to play the 911 call for the jury, and the 

following exchange occurred: 

[The Commonwealth]: Judge, with that I’d ask to play the 911 call

for the jury.

[Counsel for Appellant]: No objection. 

THE COURT: Thank you.

(Commonwealth’s Exhibit No. 3 was played to the jury.)

Id. at 77.

Based on this exchange, the trial court concluded: “When counsel 

advised the court that he had no objection to the Commonwealth introducing 

the call, the motion in limine was effectively withdrawn, and the issue was 

waived for appeal.” Trial Ct. Op., 1/20/23, at 9.

After review, we agree with the trial court’s conclusion. The notes of 

testimony confirm that the trial court did not make a “definitive ruling” during 

the hearing on the motion in limine, and Appellant’s counsel understood that

fact. See N.T., 8/22/22, at 11. The trial transcript reveals that when the 

Commonwealth played the 911 call, Appellant stated that he had “no 

objection.” See id. at 77. Indeed, Appellant made no further objection 

concerning the 911 call. On this record, we are constrained to conclude that 
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the issue is waived. See Pa.R.E. 103(a)(1); Pa.R.A.P. 302(a); Bruce, 916 

A.2d at 671. Accordingly, Appellant is not entitled to relief, and we affirm the 

judgment of sentence. 

In any event, even if Appellant had properly objected and preserved the 

issue for appeal, we would conclude that the trial court did not abuse its 

discretion. The trial court opined that if the issue had been preserved, there 

was no abuse of discretion in admitting the 911 call. The trial court stated:

Assuming, arguendo, that the issue was properly preserved, the 

911 call is not inadmissible hearsay. Appellant asserts K.L. did 

not witness Appellant carrying a firearm, and [K.L.] was only 

repeating the observations of her sister, who did not speak on the 

call, to the operator. Appellant is mistaken.

Commonwealth: [G.L.], do you remember also talking to the 

dispatcher, the person on the other end of the phone of the 

911 call?

G.L.: I do remember.

Commonwealth: Okay. And were you telling that person

what was happening at the time?

G.L.: Yes.

[N.T., 8/22/22,] at 98. The fact that K.L. did not witness Appellant 

with a firearm is undisputed, as is the fact that K.L. spoke to the 

dispatcher about G.L.’s observations. Regardless, K.L. did not 

merely repeat what her sister told her; G.L. relayed her own 

observations of the unfolding event directly to the

dispatcher. [Id.]

All statements made by K.L. and G.L. to the 911 dispatcher were 

out-of-court statements, including K.L.’s statements reiterating 

G.L.’s observations. Further, the record reflects that the 

Commonwealth sought to admit and publish the call to the jury 

for the truth of the matter asserted, that Appellant was in fact in 

physical possession of a firearm. As such, the call is hearsay if it 

does not meet the requirements for an exception to the rule

against hearsay.
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* * *

Here, K.L. and G.L. did not call for help after the events of 

December 14, 2021, concluded. When Appellant walked out of 

the house, shotgun in hand, G.L. ran to her older sister, told her 

what happened, and together, they immediately called 911. 

Here, the possible hearsay satisfies the requirements for the 

present sense impression exception. The statements and 

observations communicated between K.L. and G.L., K.L. and the

dispatcher, and G.L. and the dispatcher, were all made 

contemporaneously, or as near to as possible, and the timing of 

the call was immediately preceding G.L.’s observation of her 

father leaving the house with a shotgun. All other statements or 

observations made to the dispatcher by K.L. and G.L. were given 

as the events took place. The 911 call and its contents meet the

requirements for the exception to the rule against hearsay, 

present sense impression, and as such the call was properly 

admitted and published to the jury.

Trial Ct. Op., 1/20/23, at 9-11 (some citations omitted and some formatting 

altered).

After review, we note that the record reflects that Kristie Burkett, the 

quality assurance supervisor from the Lancaster Countywide Communications 

911 call center, authenticated the recording of the 911 call and testified that 

two girls spoke during the 911 call. See N.T., 8/22/22, at 79. Moreover, 

the trial court concluded that both K.L. and G.L. spoke on the 911 call and

expressed the events at or near the time they were perceiving them. Trial Ct. 

Op., 1/20/23, at 9-10. Further, the record reflects that both K.L. and G.L

testified that they spoke during the 911 call concerning their observations at 

or near the time they were perceiving them. See N.T., 8/22/22, at 98; 102-

103.
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Review of the 911 call confirms that both K.L. and G.L., while 

experiencing the events of December 14, 2021, explained and described the 

event as they perceived it,

2 and they both spoke during the 911 call.3

 Indeed, 

K.L. relayed to the 911 dispatcher what was occurring at the house at the time 

the events were occurring, and at one minute and twenty-one seconds into 

the 911 call, G.L. stated: “I don’t know where Mom went, and I don’t know 

where [Appellant] went. All I--the last time I saw [Appellant] was with a 

shotgun, and he told me to leave him alone after I asked him what he was 

doing with the shotgun.” Commonwealth Exhibit #3.

4

On this record, had Appellant properly preserved this issue, we would 

conclude that no relief is due, and we would agree with the trial court’s 

alternative rationale from its Rule 1925(a) opinion finding that K.L.’s and 

G.L.’s statements concerning what they saw and recorded in the 911 call were

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2 See Pa.R.E. 803(1). 

3 On February 15, 2023, the parties stipulated that the disposition of 

Appellant’s appeal would require consideration of Commonwealth Exhibit #3, 

the 911 call, and police video marked as Commonwealth Exhibit #6. See 

Stipulation, 2/15/23. 

4 Additionally, the audio from Commonwealth Exhibit #6 reveals that at twelve 

minutes and six seconds into the dash-cam recording, the police provided 

Miranda warnings, Appellant was asked if he had possessed a gun during the

incident, and Appellant responded in the affirmative. Commonwealth Exhibit 

#6. Further, at fifteen minutes and thirty-six seconds into the recording, 

Appellant also stated that he hid the gun that he possessed, and the police 

located a gun inside a shed where Appellant said he placed it. Id.; see also 

N.T., 8/22/22, at 133, 137, 151.
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admissible under the present-sense-impression exception to the general rule 

against hearsay. See Pa.R.E. 803(1) & cmt.5

For these reasons, we agree with the trial court that Appellant waived 

his claim that the 911 call constituted inadmissible hearsay. Accordingly, 

Appellant is due no relief, and we affirm Appellant’s judgment of sentence.

Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 10/23/2023

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5 To the extent that K.L.’s statement concerning what G.L. said constitute 

double hearsay, both levels of hearsay fall within the present-sense 

impression exception. See Laich, 777 A.2d at 1060; Pa.R.E. 805.